Allstate files whiney-titty-baby motion to modify judgment

Hanky, please, Grilletta has Allstate crying for relief  from the Court’s ruling in a Motion to Modify Judgment in French-Sutter v Allstate Indemnity

After a two-day bench trial, the Court orally issued its Federal Rule of Civil Procedure 52(a) findings of fact and conclusions of law and entered its Judgment on February 13, 2009. Based upon its findings and conclusions, the Court awarded the Plaintiffs the following amounts:

$123,000 under Coverage A of the Plaintiffs’ Allstate homeowners’ policy; $10,000 for a retaining wall under Coverage B; and $87,000 in penalties under the 2003 version of La. R.S. §22:658…In so holding, the Court concluded that Plaintiffs established that unpaid damage to their house and a retaining wall had occurred, entitling them to additional money under the policy. The Court further found that Allstate failed to timely pay the undisputed amount due of $70,462 based on the initial adjuster’s estimate. The Court also concluded that it was required to award a penalty of 25% on the Plaintiffs’ entire property claim,which totaled $338,000, rather than on the undisputed amount of $70,462 found to have been untimely paid to the Plaintiffs…

The Louisiana courts have been good to Allstate; but, not every judge is going to make Allstate as happy as Judge-didn’t-have-a-clue who made the big bad Foti anti-trust suit go bye-bye.  However, not pleasing Allstate does not indicate a judge is incompetent and that’s clearly the implication of the convoluted and contradictory reference to Dickerson.

Under Louisiana law, the Plaintiffs are required to establish additional, uncompensated wind damage by a preponderance of the evidence. See Dickerson v. Lexington Ins. Co…(5th Cir. Jan. 21, 2009). Plaintiffs failed to offer sufficient competent evidence proving that any unpaid damage actually existed… Further, plaintiffs did not offer competent evidence to prove that any additional unpaid damage was caused by wind rather than flood.

The discussion of Dickerson IMO is nothing more than a not-smart warm-up for the also not-smart attack on the 5th’s decision in Grilletta.  Only the good hands people, it appears, would bite the hand that feeds them, or in the case of the 5th Circuit, the hand that freed them from qui tam.

The Court should amend its earlier judgment to award penalties only on the undisputed amount rather than the entire property damage claim. While the Court purported to follow the Fifth Circuit’s recent decision in Grilletta v. Lexington Ins. Co….(5th Cir. Jan. 8, 2009), the Grilletta decision, in fact, misconstrued controlling Louisiana law and should not be considered binding precedent.

The motion continues with nit-picking detail in a tattle-tale tone and totally ignored the excruciatingly exact examination evident in the 5th Circuit’s opinion on this Louisiana law.  Nonetheless, as non-lawyer me is want to do, I was beginning to wonder if I’d misread the Grilletta opinion when I encountered a sentence that told me my understanding – and the 5th’s Opinion – and the Judge’s decision in French-Sutter – were all correct.

After vigorously insisting the 5th’s error was in the Court’s failure to attach appropriate significance and accurate understanding to Louisiana Bag v Audubon Indemnity, Allstate then offered:

As Louisiana Bag makes clear, Louisiana courts do not routinely award penalties of 25% on the entire amount due of an insured’s claim.

Legal writing 101 for insurance defense attorneys must really stress this trick as the weaker the insurer’s case, the more certain you are to see what I presume they call “a technique” and the rest of us call “trying to lie and get by”.  By any name, it needs to be packed in a Louisiana Bag and tossed with the rest of the trash that has littered our courts.

5 thoughts on “Allstate files whiney-titty-baby motion to modify judgment”

  1. As I recall, either Soren and/or Johnny were involved in that Louisiana State Court case upon which the bad faith penalty is based. The word we get is the 5th circuit ruled “straight down the pipes” in both Dickerson and Grilletta. The delay and deny has Allstate in trouble now 3 and 1/2 years later and now they grasp at straws.

    Too bad policyholder/consumers in Mississippi don’t have similar protections under the law.

    sop

  2. The insurance industry’s perversion of Louisiana law continues. Under La. R.S. 22:658.2 codifying burden of proof, at least four or five state appellate court decisions that pre-dated 22:658.2 as well as Dickerson and Griletta, the plaintiffs as owners of an all risk’s policy don’t have to prove squat, except for damage and value. The insurer, here Allstate, eats the whole thing unless Allstate can show what damage was caused by an excluded peril.

    What will it take for judges to start sanctioning the insurers for making baseless, frivolous arguments?

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